Postsecondary Education Costs: Forging Through a Legislative Labyrinth
| Jurisdiction | Colorado,United States |
| Citation | Vol. 24 No. 1 Pg. 43 |
| Pages | 43 |
| Publication year | 1995 |
1995, January, Pg. 43. Postsecondary Education Costs: Forging Through a Legislative Labyrinth
As most family law practitioners are aware, in recent years there has perhaps been no greater area of continuous legislative focus and activity than Colorado's child support statute.(fn1) Provisions regarding postsecondary education costs were added in 1986, replaced with the addition of a new section and thereafter amended in 1992, 1993 and 1994. This ferment has been confusing and the statutory provisions at times conflicting.
This article discusses the statutes and pertinent case law from 1986 to the present, in order to provide some guidance to the practitioner who faces the issue of postsecondary education costs in the context of a child support proceeding.
CRS § 14-10-115, effective November 1, 1986, overhauled Colorado's child support law using the Income Shares Model, which included a "formula" approach to the calculation of child support.(fn2) This statute is commonly referred to as the "child support guidelines." (Hereinafter, all references to "statute" and all subsections, paragraphs and subparagraphs pertain to § 14-10-115.)
Postsecondary education costs were addressed in subsection (13) as one of three "extraordinary adjustments" to the child support schedule. The other extraordinary adjustments were special or private elementary or secondary schools to meet the particular educational needs of a child, and expenses for transportation between the homes of the parents. These adjustments were allocated between the parents in proportion to their adjusted gross monthly incomes.(fn3)
Postsecondary education costs were defined in subsection (13) as "reasonable and necessary expenses... for any institution of higher education, minus contributions of the child that actually reduce expenses, including employment and scholarships or grants." The allocation of these costs could be accomplished either "by agreement of the parties or by order of court."(fn4) This provision applied to all child support obligations, established or modified, as a part of any proceeding, whether filed on, prior to or subsequent to July 10, 1987.(fn5)
From 1986 until July 1, 1991, there were only two statutory limitations on the parents' duty to provide for postsecondary education costs: (1) emancipation of the child and (2) the reasonableness and necessity of the expenses. The statute did not address the cessation of the monthly child support payments on entry of an order for education costs.
The Uniform Dissolution of Marriage Act ("UDMA") provides that "unless otherwise agreed in writing or expressly provided in the decree, provisions for the support of a child are terminated by emancipation of the child."(fn6) In 1971, the Colorado Supreme Court held in Van Orman v. Van Orman(fn7) that the presumed age of emancipation was twenty-one, although the presumption could be defeated, as later held in Koltay v. Koltay,(fn8) where the child was physically or mentally incapable of self-support.
The interplay of emancipation with postsecondary education costs generated various results in Plummer, Micaletti, LeBlanc and Huff, until the issue was settled with the 1991 codification of emancipation as the age of nineteen.(fn9)
In 1991, the legislature overhauled the postsecondary education provisions and codified the age of emancipation with the addition of a new subsection (1.5). Emancipation is now deemed to occur and all child support to terminate at the age of nineteen, unless: (1) the parties agree otherwise in a written stipulation entered into after July 1, 1991; (2) the child is mentally or physically disabled or still in high school or an equivalent program; or (3) a postsecondary education order has been entered.(fn10)
The new definition of emancipation at age nineteen had an immediate and profound impact. It essentially nullified, if challenged, any existing orders and stipulations for child support entered into prior to July 1, 1991, that continued support to any age past nineteen. Arguably, subsection (1.5)(a) had the same impact on orders and stipulations regarding post-secondary education costs.(fn11)
Postsecondary education costs were addressed in subsection (1.5)(b). There, it...
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